First Impressions

459

First Impressions

The following pages contain brief summaries, drafted by the Seton Hall Circuit Review members, of issues of first impression identified by a federal court of appeals opinion between September 1, 2005 and January 31, 2006. This collection is organized by circuit.

Each summary presents an issue of first impression, a brief analysis and the court’s conclusion. It is intended to give only the briefest synopsis of the first impression issue, not a comprehensive analysis. This compilation makes no claim to be exhaustive, but will hopefully serve the reader well as a reference starting point.

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FEDERAL CIRCUIT

SKF USA Inc. v. Int’l Trade Comm’n, 423 F.3d 1307 (Fed. Cir. 2005) QUESTION: Must “the distinction between domestic goods and gray market goods . . . be physical in nature in order to satisfy the ‘material difference test,’” thereby establishing a violation of trademark under § 337 of the Tariff Act of 1930? Id. at 1313.

goods are legally acquired abroad and then imported without the consent of the United States trademark holder.’” Id. at 1312 (quoting Gamut Trading Co. v. Int’l Trade Co., 200 F.3d 775, 778 (Fed. Cir. 1999)). Further, where there is a material difference between the goods of the U.S. trademark holder and the gray market goods bearing the same mark, there exists an infringement of the U.S. trademark. Id. at 1312-13. The Federal Circuit explained that the material difference test is used because gray market goods that lack certain characteristics associated with the goods of the U.S. trademark holder but bearing the same mark may lead consumers to believe that the goods “originated from the trademark owner . . . [thereby] damag[ing] the owner’s goodwill.” Id. at 1312. The court then noted that in prior cases on the subject, “material differences were found based in part on differences in services and guarantees between authorized and gray market goods, as well as accompanying documents such as instruction manuals, nonphysical traits that were nevertheless determined to constitute a material difference to consumers.” Id. at 1314. The Federal Circuit thus found the proposition that “nonphysical traits may constitute material differences [to be] consistent with [Federal Circuit] case law and [as promoting] the sound, established policies underlying trademark protection.” Id.

CONCLUSION: “[M]aterial differences need not be physical in order to establish trademark infringement in gray market cases.” Id.

Saab Cars USA, Inc. v. United States, 434 F.3d 1359 (Fed. Cir. 2006) QUESTION: What is “[t]he correct standard of review for a judgment issued on stipulated facts in lieu of trial”? Id. at 1371.

ANALYSIS:The Federal Circuit stated that “in rendering judgment based upon stipulated facts, the trial judge of necessity draws – and bases legal conclusions on – factual inferences that would be impermissible in the summary judgment context under Rule 56.” Id. at 1372. In addition, “[a] trial court’s decision based upon stipulated facts resembles, in significant respects, a decision on the administrative record, which we have recently concluded is not akin to summary judgment.” Id.; see Bannum, Inc. v. United States, 404 F.3d 1346, 1353-57 (Fed. Cir. 2005).

IPXL Holdings, L.L.C. v. Amazon.com, Inc., 430 F.3d 1377 (Fed. Cir. 2005)

QUESTION: “Whether a single claim covering both an apparatus and a method of use of that apparatus is invalid” in a patent infringement suit. Id. at 1384.

ANALYSIS: “The Board of Patent Appeals . . . has made it clear that reciting both an apparatus and a method of using that apparatus renders a claim indefinite under section 112, paragraph 2.” Id. The court ruled that, “such a claim ‘is not sufficiently precise to provide competitors with an accurate determination of the ‘metes and bounds of protection involved’ and is ‘ambiguous and properly rejected’ under section 112, paragraph 2.” Id.

CONCLUSION: “Because [the claim] recites both a system and the method for using that system, it does not apprise a person of ordinary skill in the art of its scope, and it is invalid under section 112, paragraph 2.” Id. (quoting Ex Parte David L. Lyell, 17 U.S.P.Q. 2d 1548, 1550-51 (BPAI 1990).

FIRST CIRCUIT

United States v. Brito, 427 F.3d 53 (1st Cir. 2005)

QUESTION:“Under what circumstances should an excited utterance made to a police officer be considered testimonial?” Id. at 55-56.

or regained the capacity to make a testimonial statement at the time of the utterance.” Id. at 62.

CONCLUSION:While the circumstances will vary from case to case, in “the circumstances at hand, the excited utterance was nontestimonial and, therefore, properly admitted into evidence.” Id. at 56.

United States v. Martinez-Flores, 428 F.3d 22 (1st Cir. 2005)

QUESTION: Whether “the Congressional endorsement of downward sentencing [under the Other Tools to End the Exploitation of Children Today Act (“Protect Act”), Pub. L. No. 108-21, 117 Stat. 650 (2003)] departures in conjunction with ‘fast-track’ case processing violate the nondelegation doctrine?” Id. at 24.

ANALYSIS: Congress recently instructed the United States Sentencing Commission to add § 401(m)(2)(B) to the Protect Act, giving the Government authority to grant criminals prosecuted under the Act a four-level downward sentencing departure in exchange for their guilty pleas and waivers of rights to file motions and appeals. See id. at 26. This provision gives the Attorney General discretion to decide the circumstances under which he would authorize such a “fast-track” program. Id. at 25-26. The appellant argued that this provision is unconstitutional because it delegates too much legislative power to the Attorney General. Id. at 26. The 1st Circuit reasoned that “Congress created the Sentencing Commission and may constitutionally require the Commission to set sentencing policy.” Id. at 28. The court added, “[t]he fact that the new sentencing policy contains a condition that depends for its fulfillment on actions of the Attorney General does not mean Congress has delegated either Legislative or Judicial Branch power to the Attorney General.” Id. The court noted that the Attorney General does not have to act at all under this provision and that the authority given to the Attorney General under this provision is “‘no broader than the authority [prosecutors] routinely exercise in enforcing criminal laws.’” Id. at 28-29 (alteration in original).

CONCLUSION: The 1st Circuit held that § 401(m)(2)(B) of the Protect Act does not violate the nondelegation doctrine. Id. at 24.

In re PolyMedica Corp. Sec. Litig., 432 F.3d 1 (1st Cir. 2005)

ANALYSIS: In a securities fraud action under § 10(b) of the Exchange Act and Rule 10b-5, reliance is a required element. Id. at 4. One theory that may be used to prove reliance is the fraud-on-the-market theory which permits “a rebuttable presumption that the plaintiff relied on the ‘integrity of the market price’ which reflected that misstatement.” Id. at 5. In order to use the fraud-on-the-market theory, an investor must prove that the market is “efficient.” Id. The Supreme Court decision adopting the fraud-on-the-market theory, Basic v. Levinson, 485 U.S. 224 (1988), did not adopt any particular economic theory to use for determining if a market is efficient. Id. at 9.

Most other circuits have adopted “a definition of market efficiency which requires that stock price fully reflect all publicly available information.” Id. This definition is also consistent with a pre-Basic 1st Circuit decision. Id. at 10 (citing Roeder v. Alpha Indus., Inc., 814 F.2d 22 (1st Cir. 1987)). Finally, the only alternative definition “allows some information to be considered ‘material’ and yet not affect market price.” Id.

CONCLUSION: “An efficient market is one in which the market price of the stock fully reflects all publicly available information.” Id. at 14.

United States v. Rondeau, 430 F. 3d 44 (1st Cir. 2005)

QUESTION:Whether the Crawford rule, which generally precludes use of testimonial hearsay, applies in supervised release revocation proceedings. Id. at 47.

ANALYSIS:“Nothing in Crawford indicates that the Supreme Court intended to extend the Confrontation Clause’s reach beyond the criminal prosecution context.” Id. The 1st Circuit joins the 6th, 8th, and 9th Circuits in concluding “a supervised release revocation hearing is not a ‘criminal prosecution,’” therefore, Crawford does not apply. Id. at 48.

CONCLUSION: The use of testimonial hearsay is permitted in a supervised release revocation hearing. Id.

In re Antonio Rivera Torres, 432 F.3d 20 (1st Cir. 2005)

ANALYSIS: The court began by noting that the standard for waiver is stringent, and “[a] waiver must be unequivocally expressed and must be strictly construed in favor of the sovereign with ambiguities construed against waiver.” Id. at 23-24 (internal quotations and citations omitted). The court then found that “[t]here is no doubt that § 106 is an express waiver of sovereign immunity [but that] does not answer the question of what types of relief are encompassed in the waiver.” Id. at 24 (emphasis added). The 1st Circuit concluded that although the legislative history shows a waiver for monetary damages, “Congress has not ‘definitely and unequivocally’ waived sovereign immunity under § 106(a) of the Bankruptcy Code for emotional damages awards in circumstances such as these.” Id. at 31.

CONCLUSION: The 1st Circuit held that “sovereign immunity bars awards for emotional distress damages against the federal government under § 105(a) for any willful violation of § 524, and that immunity is not waived by § 106.” Id.

Powell v. United States, 430 F.3d 490 (1st Cir. 2005)

QUESTION: Whether defendant’s conviction for eluding a police officer qualifies as a crime of violence under 18 U.S.C. § 924, the Armed Career Criminal Act (“ACCA”). Id. at 491.

ANALYSIS: The court analogized eluding a police officer to a prison escape. Id. Regarding the latter, the 1st Circuit had recently characterized a prison escape as similar to “a ‘powder keg,’ ready to explode into violence.” Id. (quoting United States v. Winn, 364 F.3d 7, 11-12 (1st Cir. 2004). Furthermore, the court noted that a “consensus has emerged that evasive driving offenses, like prison escapes, constitute a category of ‘violent crime’ within the meaning of the ACCA’s provision for ‘conduct that presents a serious potential risk to another.’” Id. (quoting 18 U.S.C. § 924(e)(2)(B)(ii)). Finally, the court reasoned that “high-speed car chases pose a grave threat of death and injury by collision, as well as escalated confrontations between suspects and police.” Id. at 492.

CONCLUSION: The court held that defendant’s conviction for eluding police is a proper violent-crime predicate under the ACCA. Id.

In re William Smith, 436 F.3d 9 (1st Cir. 2006)

ANALYSIS: The petitioner, a federal inmate convicted of being a felon in possession of a firearm sought an appeal of the district court’s denial of his habeas petition. Id. at 10. The 1st Circuit determined that “[a]lthough the statute itself does not define when a conviction becomes final for this purpose, every circuit that has addressed the issue has concluded that a conviction becomes final—and the one-year period therefore starts to run—when a petition for certiorari is denied.” Id.

CONCLUSION: The 1st Circuit denied petitioner’s appeal and concluded that the one-year statute of limitations runs when the Supreme Court first denies certiorari. Id. at 11.

United States v. Pho, 433 F.3d 53 (1st Cir. 2006)

QUESTION: Whether “a federal district court, consistent with the teachings of United States v. Booker [may] impose a sentence outside the advisory guideline sentencing range based solely on its categorical rejection of the guidelines’ disparate treatment of offenses involving crack cocaine, on the one hand, and powdered cocaine, on the other hand.” Id. at 54 (citation omitted).

ANALYSIS: In a consolidation of two appeals, the 1st Circuit found that “the lower court jettisoned the guidelines and constructed a new sentencing range by using a 20:1 crack-to-powder ratio in lieu of the 100:1 ratio embedded in both the statutory scheme and the guidelines.” Id. at 62. Firmly articulating that “[m]atters of policy typically are for Congress,” the appellate court described the “decision to employ a 100:1 crack-to-powder ratio rather than a 20:1 ratio, a 5:1 ratio, or a 1:1 ratio . . . a policy judgment, pure and simple.” Id. (citing United States v. Andrade, 94 F.3d 9, 14-15 (1st Cir. 1996)). The Sentencing Commission, by congressional edict, “is allied with Congress in the important endeavor of calibrating sentences for federal offenses” and “[n]othing in Booker altered this distribution of authority over sentencing policy.” Id. Thus, under Booker, “a district court may exercise discretion in fashioning sentences – but that discretion was meant to operate only within the ambit of the individualized factors spelled out in section 3553(a).” Id. (citing United States v. Booker, 543 U.S. 220, 125 S. Ct. 738, 764-66 (2005)). As such, “the district court’s categorical rejection of the 100:1 ratio impermissibly usurps Congress’s judgment about the proper sentencing policy for cocaine offenses.” Id. at 63.

that sentencing decisions must be done case by case and must be grounded in case-specific considerations, not in general disagreement with broad-based policies enunciated by Congress or the Commission, as its agent.” Id. at 64-65.

SECOND CIRCUIT

M. Fortunoff of Westbury Corp. v. Peerless Ins. Co., 432 F.3d 127 (2d Cir. 2005)

QUESTION: “Whether 49 U.S.C. § 13906(a)(3) (2000 & Supp. 2005), enacted as part of the Interstate Commerce Commission Termination Act of 1995 (“ICCTA” or “Termination Act”), Pub. L. No. 104-88, 109 Stat. 803, to replace the Motor Carrier Act’s insurance provisions, allowed the Federal Motor Carrier Safety Administration (“FMCSA”) – the successor agency to the Interstate Commerce Commission (“ICC”) in this area of regulation – to continue to distinguish between types of motor carriage when requiring cargo liability insurance.” Id. at 129.

ANALYSIS: “Prior to 1995 the Motor Carrier Act distinguished between two different types of motor carriers: motor common carriers and motor contract carriers.” Id. at 130 (citing 49 U.S.C. § 10102(15)-(16) (1994)). The ICC issued separate regulations for each type, including different insurance requirements. Id. at 130-31. Under the ICCTA the distinction between the types of carriers was abolished, however, pursuant to the “transition rule” in 49 U.S.C. § 13902(d) (2000), the FMCSA “continued to register transportation providers as ‘common carriers’ and ‘contract carriers.’” Id. at 133. Congress had, however, clearly intended to abolish separate categories for motor carriers. Id. at 136. Congress left to the discretion of the Secretary of Transportation the decision to require cargo liability insurance. Id. at 137. This incorporation of discretion allows the Secretary to require that motor carriers have cargo insurance and to require that some carry insurance while others do not. Id. at 138.

Bus. and Residents Alliance of East Harlem v. Jackson, 430 F.3d 584 (2d Cir. 2005)

QUESTION:“Whether the [New York City Empowerment] Zone’s subsequent use . . . of federal funds in connection with individual projects triggers the historic preservation preview process, as set forth in § 106 of the National Historical Preservation Act, 16 U.S.C. § 407(f).” Id. at 586.

ANALYSIS:Section 106is triggered only when a federal agency has jurisdiction or licensing authority over the project at issue. Id. In the case of the Zone, all approval and funding decisions as to the East River Plaza project are made at the state and local level. Id. Therefore, § 106 is not triggered, and thus construction of the East River Plaza project can move forward with construction without undergoing a historical preservation review process. Id. at 594.

CONCLUSION:Section 106is inapplicable here, thus, the historical preservation review process is not triggered. Id.

In reSmart World Techs., L.L.C., 423 F.3d 166 (2d Cir. 2005)

QUESTION: Whether the bankruptcy court erred in granting creditor-appellees standing to pursue settlement of an adversary proceeding under FED. R. BANK. P. 9019 without the participation of, and over objections of, the debtor-in-possession. Id. at 174-75.

ANALYSIS: The court looked at the plain language of the rule as well as policy considerations and determined that the rule permits only the debtor-in-possession to move for settlement. Id. at 175. However, the court noted that certain limited circumstances allow settlement of a claim over the objections of the debtor-in-possession, such as aggrieved creditors or other parties dissatisfied with the conduct of a debtor-in-possession who appoints a trustee or examiner who then brings the motion. Id. at 175-76. However, those circumstances were not present in this case. Id. at 176. The court also held that only in rare circumstances may the doctrine of derivative standing be appropriate in the rule 9019 context if unjustifiable behavior exists on the part of the debtor-in-possession, however, those circumstances also were not present in this case. Id. at 177. Finally, the court held that the power granted under 11 U.S.C. § 105 does not provide the bankruptcy court with an independent basis to grant standing. Id. at 184.

Guaylupo-Moya v. Gonzales, 423 F.3d 121 (2d Cir. 2005)

QUESTION: Whether the Illegal Immigration Reform and Immigrant Responsibility Act (“IIRIRA”) retroactively restricts deportation relief under section 212(h) of the Immigration and Nationality Act of 1952 (“INA”), codified as 8 U.S.C. § 1182(h), for offenses committed by an alien prior to the statute’s enactment. Id at 129.

ANALYSIS: The court applied a line of case law relating to the effect of IIRIRA and the Antiterrorism and Effective Death Penalty Act (“AEDPA”) to a similar section of the INA which held that no retroaction will apply unless there is clear language by Congress to the contrary. Id. at 129. In the event that the language is ambiguous, courts must determine whether applying the statute retroactively “would change the legal consequences of past events;” in which case the courts would find a presumption against retroactivity. Id. at 130. The court then concluded that section 348(a) clearly demonstrated that Congress intended the provisions of IIRIRA to apply retroactively to aliens in deportation proceedings after IIRIRA’s enactment regardless of when the offense occurred and that the restriction shall apply to aliens convicted of the offense of “aggravated felonies” regardless of when the offense occurred. Id. at 131.

CONCLUSION: The court ultimately held that Congress’s unambiguous intent shows that IIRIRA shall apply retroactively to offenses committed before the statute’s enactment. Id. at 129.

De La Vega v. Gonzales, 436 F.3d 141 (2d Cir. 2006)

QUESTION: “[W]hether this Court has jurisdiction to review a denial by the Board of Immigration Appeals (“BIA”) of a petitioner’s request for cancellation of removal on the basis of its finding that the petitioner failed to demonstrate that his removal would cause ‘exceptional and extremely unusual hardship’ to a qualifying U.S. citizen relative.” Id. at 141.

extremely unusual hardship’ is discretionary” not only because all circuit courts confronted with the issue had answered in the positive, but also because “cases construing the scope of appellate jurisdiction to review BIA denials of ‘suspension of deportation’–the predecessor to ‘cancellation of removal’–under the prior, “extreme hardship” statutory formulation” regard such determinations as discretionary. Id. at 144-45.

CONCLUSION: The court ultimately made two finding: “(1) ‘exceptional and extremely unusual hardship’ determinations by the BIA are discretionary judgments and (2) we therefore lack jurisdiction to review such judgments, in accordance with 8 U.S.C. § 1252(a)(2)(B)(i).” Id. at 145-46.

Mastrovincenzo v. City of New York, 435 F.3d 78 (2d Cir. 2006)

QUESTION: Whether a New York City licensing requirement is “narrowly tailored in its application to . . . vendors of regular merchandise with sufficient expressive content to qualify for First Amendment protection.” Id. at 102.

CONCLUSION: Thus, “notwithstanding Bery v. City of New York, 97 F.3d 689 (2d Cir. 1996), [the licensing requirement was] sufficiently narrowly tailored to satisfy intermediate scrutiny.” Id.

THIRD CIRCUIT

Century 21 Real Estate Corp. v. Lendingtree, Inc., 425 F.3d 211 (3d Cir. 2005)

QUESTION: Whether the nominative fair use defense is recognized in the 3rd Circuit in an action for trademark infringement. Id. at 218.

ANALYSIS: As an issue of first impression in the 3rd Circuit, the court disagreed with the 9th Circuit, which had denounced the “likelihood of confusion” test. Id. at 220. The 3rd Circuit, while agreeing “with the Ninth Circuit Court of Appeals that a distinct analysis is needed for nominative fair use cases,” concluded that the “likelihood of confusion” test should not be completely supplanted. Id. Thus, the court “disagree[d] with the fundamental distinction the Ninth Circuit Court of Appeals drew between classic and nominative fair use” and instead, set forth a two-step approach of its own. Id. at 221-22. “The plaintiff must first prove that confusion is likely due to the defendant’s use of plaintiff’s mark. . . . Once plaintiff has met its burden of proving that confusion is likely, the burden then shifts to defendant to show that its nominative use of plaintiff’s mark is nonetheless fair. Id. at 222. “To demonstrate fairness, the defendant must satisfy a three-pronged nominative fair use test, derived to a great extent from the one articulated by the Court of Appeals for the Ninth Circuit. Under our fairness test, a defendant must show: (1) that the use of plaintiff’s mark is necessary to describe both the plaintiff’s product or service and the defendant’s product or service; (2) that the defendant uses only so much of the plaintiff’s mark as is necessary to describe plaintiff’s product; and (3) that the defendant’s conduct or language reflect the true and accurate relationship between plaintiff and defendant’s products or services.” Id.

CONCLUSION: “We hold today that the burden of proving likelihood of confusion, even in a nominative use case, should remain with the plaintiff.” Id. at 226.

McGowan v. NJR Service Corp., 423 F.3d 241 (3d Cir. 2005)

(‘ERISA’) . . . required to recognize an individual’s waiver of her beneficiary interest under the plan?” Id. at 243.

ANALYSIS: Title 29 of U.S.C. § 1104(a)(1)(D) “dictates that it is the documents on file with the Plan, and not outside private agreements between beneficiaries and participants, that determine the rights of the parties.” Id. at 245-46. Thus, “any requirement imposed on Plan administrators to look beyond these documents would go against the specific command of § 1104(a)(1)(D).” Id. at 246. “‘[O]ne of the principal goals underlying ERISA . . . [is] ensuring that ‘plans be uniform in their interpretation and simple in their application.’” Id. (quoting McMillan v. Parrott, 913 F.2d 310, 312 (6th Cir. 1990)). “This extremely important policy goal is best served by the conclusion that, under § 1104(a)(1)(D), outside waivers are not binding on Plan administrators.” Id.

CONCLUSION: “Plan administrators are not required to look beyond Plan documents to determine whether a waiver has been effectuated in a private agreement between the participant and his [or her] named beneficiary.” Id. at 242.

Interfaith Cmty. Org. v. Honeywell Int’l, Inc., 426 F.3d 694 (3d Cir. 2005)

FIRST QUESTION:“Whether a court should look to prevailing rates in the attorney’s home community or the locus of the litigation in determining the appropriate compensation for an out-of-town attorney.” Id. at 705.

ANALYSIS:The court first looked to one of its previous decisions, In re Fine Paper Antitrust Litigation, 751 F.2d 562 (3d Cir. 1984), where the court “held that it was error for a district court to apply ‘hypothetical national rates’ in determining the size of a fee award.” Id. at 705. The court looked to the recommendation of a task force it commissioned two decades earlier which recommended a “forum rate” rule whereby an “out-of-town lawyer would receive not the hourly rate prescribed by his district but rather the hourly rate prevailing in the forum in which the litigation is lodged.” Id. at 704. The court found that while in most cases a “forum rate” should apply, there were “two exceptions: first ‘when the need for the special expertise of counsel from a distant district is shown’; and, second, ‘when local counsel are unwilling to handle the case.’” Id. at 705.

SECOND QUESTION: “Whether a prevailing party is entitled to compensation for the costs of non-testifying experts under a fee-shifting statute.” Id. at 715.

ANALYSIS:The court reviewed decisions in both the D.C. Circuit and the 11th Circuit, but found none to be entirely on point. Id. at 715-16. Instead, the court looked to the Supreme Court decision in Missouri v. Jenkins, 491 U.S. 274 (1989), where the Court found “the phrase ‘reasonable attorney’s fee’ can encompass work performed by individuals who are not attorneys.” Id. at 716. The Supreme Court continued that “[r]ather, the term must refer to a reasonable fee for the work product of an attorney.” Id. The 3rd Circuit reasoned that “[t]o forbid the shifting of the expert’s fee would encourage underspecialization and inefficient trial preparation, just as to forbid shifting the cost of paralegals would encourage lawyers to do paralegals work.” Id. Concurring with the 7th Circuit, the 3rd Circuit noted that “prohibiting reimbursement for the fees of non-testifying experts would simply encourage attorneys to educate themselves, undoubtedly at higher costs.” Id. at 716-17.

CONCLUSION:The 3rd Circuit concluded that “a prevailing party is entitled to compensation for the costs of non-testifying experts under a fee-shifting statute.” Id. at 715.

Garcia v. Plaza Oldsmobile Ltd., 421 F.3d 216 (3d Cir. 2005)

QUESTION: “[W]hether the court should use Pennsylvania common law or New York’s statutory law to determine if [defendant-owner, a New York corporation with its principal place of business in that state] can be liable” for the acts of a New York citizen-driver who injured a Pennsylvania citizen in Pennsylvania while driving a rented motor vehicle from defendant corporation. Id. at 219.

law were not applied.’” Id. (citing Lacey v. Cessna Aircraft Co., 932 F.2d 170, 187 & n.15 (3d Cir. 1991)). In cases of “false conflict, [courts] apply the law of the only interested jurisdiction.” Id.

CONCLUSION: The court determined that the case presented “a false conflict” because “applying New York law to impose liability [on the defendant] does not impair the interests of Pennsylvania, while on the contrary, the application of Pennsylvania law would impair New York’s interest in providing injured plaintiffs with a financially responsible defendant, and imposing a high degree of responsibility on the owners of vehicle[s].” Id. at 223. Thus, the 3rd Circuit affirmed the district court’s grant of summary judgment in finding that the law of the interested jurisdiction, here New York, should apply. Id. at 223-224.

Slagle v. County of Clarion, 435 F.3d 262 (3d Cir. 2006)

QUESTION: “[W]hether the participation clause of section 704(a) [of Title VII] protects an employee who files a facially invalid claim for retaliatory discharge.” Id. at 266.

ANALYSIS: Slagle alleged that he was terminated from his position as a Corrections Officer because of “unlawful retaliation in violation of Title VII.” Id. at 264. The district court granted summary judgment holding that Slagle had failed to “establish that he engaged in protected activity, which is an essential element of a prima facie case of retaliation under Title VII.” Id. The court noted that a “plaintiff need only allege discrimination on the basis of race, color, religion, sex, or national origin to be protected from retaliatory discharge under Title VII. Protection is not lost merely because an employee is mistaken on the merits of his or her claim.” Id. at 268. However, the court continued, “Slagle’s complaint, with its vague allegations of ‘civil rights’ violations, did not meet even this low bar.” Id.

CONCLUSION: The 3rd Circuit, consistent with the 4th and 9th Circuits, held that “we cannot dispense with the requirement that the plaintiff allege prohibited grounds” to constitute a valid retaliatory claim under Title VII. Id. at 267.

FOURTH CIRCUIT

United States v. Amaya-Portillo, 423 F.3d 427 (4th Cir. 2005)

‘aggravated felony’ under section 2L1.2 [of the United States Sentencing Guidelines] if it is [classified as] a misdemeanor under the applicable state law and punishable only as a misdemeanor under the Controlled Substances Act (“CSA”), 21 U.S.C. § 801.” Id. at 430-31.

ANALYSIS: The statutory language of the Sentencing Guidelines, § 2L1.2(b)(1)(C) is evidence that “Congress did not intend for the same definition of ‘felony’ as a crime punishable by more than one year of imprisonment to apply” to felony drug offenses punishable under the CSA. Id. at 432. The court found compelling that Congress could have but ultimately did not define a “‘drug trafficking crime’ as a drug offense punishable by imprisonment for more than one year.” Id. at 435. The court also found persuasive arguments from “seven other circuits, each of which conducted the ‘aggravated felony’ inquiry by focusing upon the ‘classification’ of an offense under state law rather than upon potential punishment.” Id. at 432. The court noted that it applied the analysis it used in a similar case, in essence rejecting the rule adopted by the 6th and 9th Circuits. Id. at 430, 435.

CONCLUSION: Under Maryland law, although the defendant’s offense carried a possible sentence of more than one year imprisonment, it is classified as a misdemeanor. Id. at 428. In addition, possession of cocaine “is neither classified as a felony by Federal or Maryland law [but is classified as a misdemeanor] . . . the offense is not a ‘felony’ under 21 U.S.C. § 802(13), nor an ‘aggravated felony’ under section 2L1.2 of the Sentencing Guidelines.” Id. at 435. Ultimately, the court “conclude[d] that a ‘felony’ under the CSA means ‘any Federal or State offense classified by applicable Federal or [State] law as a felony.” Id. In doing so, the court deferred “to a state’s judgment, not as to the appropriate punishment, but as to whether the offense is a felony.” Id.

United States v. Fitzgerald, 435 F.3d 484 (4th Cir. 2006)

QUESTION: Whether the application of 18 U.S.C. § 3147 can enhance a sentence for the crime of failing to appear at a criminal sentencing under 18 U.S.C. § 3146. Id. at 486.

CONCLUSION: The court held that “the plain language of § 3147 provides for the district court’s enhancement of [the defendant’s] sentence.” Id. at 487. Because Double Jeopardy does not apply to this sentence, it was affirmed. Id.

FIFTH CIRCUIT

United States v. Jackson, 426 F.3d 301 (5th Cir. 2005)

QUESTION: “[W]hether incarceration for a parole violation that was later held unconstitutional by a state court tolls the defendant’s period of supervised release under 18 U.S.C. § 3624 (2005).” Id. at 301.

ANALYSIS: The court began its analysis by looking to the plain language of the statute. Id. at 304. The language is clear: “the period of supervised release does not run during imprisonment.” Id. If incarceration reduced the period of supervised release, the rehabilitative objectives of that program would be void. Id. at 305.

CONCLUSION: Thus, the court held that “[the defendant’s] prior incarceration tolled his supervised release and thereby extended the period he must submit to supervised release.” Id. at 302.

Caldwell v. Dretke, 429 F.3d 521 (5th Cir. 2005)

QUESTION: “[W]hether orders of deferred adjudication community supervision and straight probation are final judgments for purposes of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) one-year statute of limitations.” Id. at 522.

H.R. Rep. No. 104-518, at 111 (1996)). The court added that the deferred adjudication became final “by the conclusion of direct review or the expiration of the time for seeking such review.” Id. at 529.

CONCLUSION: The court held that the “orders of deferred adjudication . . . and straight probation are final judgments for purposes of [AEDPA’s] one-year statute of limitations.” Id. at 523.

Praylor v. Tex. Dep’t of Criminal Justice, 430 F.3d 1208 (5th Cir. 2005)

QUESTION: Whether a prison’s decision to decline “to provide a transsexual with hormone treatment amounts to acting with deliberate indifference to a serious medical need.” Id. at 1209.

ANALYSIS: Relying on three other circuit decisions (White v. Farrier, 849 F.2d 322 (8th Cir. 1988); Meriwether v. Faulkner, 821 F.2d 408 (7th Cir. 1987); and Supre v. Ricketts, 792 F.2d 958 (10th Cir. 1986)) the 5th Circuit found that the prison’s medical analysis was considerate and thorough. Id.

CONCLUSION: The court held that the “refusal to provide hormone therapy [for incarcerated transsexuals] did not constitute” deliberate indifference. Id.

United States v. Burns, 433 F.3d 442 (5th Cir. 2005)

QUESTION:Whether an otherwise valid appeal waiver is rendered invalid, or inapplicable to an appeal seeking to raise a Booker or Fanfan issue, merely because the waiver was made before Booker. Id.

ANALYSIS: A waiver of a right to appeal must be voluntary, knowing and intelligent with “sufficient awareness of the relevant circumstances and likely consequences.” Id. at 449 (citing Brady v. United States, 397 U.S. 742 (1970)). The validity of the waiver is determined by the totality of the circumstances. Id. In Brady, the petitioner argued that a statute, which was later held unconstitutional, coerced his guilty plea. Id. (citing Brady, 397 U.S. at 743-44). The Supreme Court rejected that contention, holding that “‘absent misrepresentation or other impermissible conduct by state agents,’” the waiver is valid. Id. (quoting Brady, 397 U.S. at 757). Other circuits have rejected the argument that a defendant’s waiver of appeal prior to Booker does not render such waiver invalid while relying on Brady. Id.

issue . . . merely because the waiver was made before Booker.” Id. at 450.

United States v. Arbizu, 431 F.3d 469 (5th Cir. 2005)

QUESTION:“Whether failure to provide written notice of the terms of supervised release automatically invalidates a revocation of such release if the defendant received actual notice of the conditions.” Id. at 470.

ANALYSIS: “The purpose of §§ 3583(f) and 3603(1) is to ensure that the defendant is notified of the conditions of his supervised release. Congress decided that requiring the probation officer to provide the defendant with written notice of the conditions is the best way to ensure the defendant knows what is expected of him during the supervised release periods. It would be patently unfair to revoke a defendant’s supervised release and send him back to prison for violating conditions of the release that he had no way of knowing existed.” Id. at 471. The 5th Circuit followed the reasoning and conclusion of the 1st, 8th, and 9th Circuits on this issue. Id. at 470.

CONCLUSION: The “[g]overnment’s failure to provide the notice required by the statutes does not limit the district court’s authority to revoke supervised release where the defendant had actual notice of the release terms.” Id.

Withhart v. Otto Candies, L.L.C., 431 F.3d 840 (5th Cir. 2005)

QUESTION: The court considered “whether a shipowner-employer may assert a negligence and indemnity claim against its seaman-employee for property damage allegedly caused by the seaman-employee’s negligence.” Id. at 841.

ANALYSIS: The court noted that the employer’s claims “are consistent with general maritime law.” Id. at 842. The court reasoned that the “Federal Employer’s Liability Act (“FELA”), 45 U.S.C. §§ 51, et seq., and consequently, the Jones Act, 46 U.S.C. App. § 688, contain[ed] no prohibition against a general maritime negligence and indemnity claim by a ship-owner employee against its seaman-employee for property damage.” Id. at 841.

United States v. Adair, 436 F.3d 520 (5th Cir. 2006)

QUESTION: Whether the court should remand for resentencing a case in which the district court imposed a lower alternative sentence based on belief that the Supreme Court’s decision in Blakely v. Washington, 542 U.S. 296 (2004), may have invalidated the Federal Sentencing Guidelines. Id. at 528.

ANALYSIS: The 5th Circuit explained that Blakely does apply to the sentencing guidelines in the sense that it establishes that “it violates a defendant’s Sixth Amendment right to a trial by jury for a judge to enhance a sentence based on facts neither admitted by the defendant nor proved to a jury beyond a reasonable doubt.” Id. (citing United States v. Booker, 543 U.S. 220, 242-43 (2005)). However, the court also found that “there is nothing in the record to suggest that the district court anticipated Booker’s remedial holding [which made the sentencing guidelines advisory] and considered the sentencing guidelines as one factor among others listed in 18 U.S. C. § 3553(a).” Id.

CONCLUSION: The district court’s decision to impose the alternative sentence is invalid under Supreme Court precedent and the sentencing guidelines. Id. at 529.

Mello v. Sara Lee Corp., 431 F.3d 440 (5th Cir. 2005)

QUESTION: “Is ERISA-estoppel a cognizable legal theory?” Id. at 444.

ANALYSIS: The 5th Circuit joined the majority of circuits in “explicitly adopting ERISA-estoppel as a cognizable theory.” Id. The court held that “[t]o establish an ERISA-estoppel claim, the plaintiff must establish: (1) a material misrepresentation; (2) reasonable and detrimental reliance upon the representation; and (3) extraordinary circumstances.” Id. “Plaintiffs are able to satisfy the material misrepresentation element if their employers misrepresented any pertinent information.” Id. at 445. The court noted that, “material misrepresentations can be made in informal documents.” Id. The 5th Circuit held that, “it was unreasonable for Mello to rely on Sara Lee’s informal material misrepresentations regarding his benefits and Mello cannot establish his estoppel claim. ERISA’s policy against informal modifications of plan terms precludes a finding that Mello reasonably relied on the benefit statements’ pension amounts.” Id.

SIXTH CIRCUIT

Gibson Guitar Corp. v. Paul Reed Smith Guitars, L.P., 423 F.3d 539 (6th Cir. 2005).

QUESTION: May the “initial-interest-confusion” doctrine be used as a substitute for actual confusion in order to find infringement of a trademark on a product’s shape? Id. at 551.

ANALYSIS: The 6th Circuit began by explaining that “[i]nitial-interest confusion takes place when a manufacturer improperly uses a trademark to create initial customer interest in a product, even if the customer realizes, prior to purchase, that the product was not actually manufactured by the trademark holder.” Id. at 549. The court then noted that “[t]he potential ramifications of applying this judicially created doctrine to product-shape trademarks are different from the ramifications of applying the doctrine to trademarks on a product’s name, a company’s name, or a company’s logo.” Id. at 551 n.15. For the court, these ramifications included allowing “trademark holders to protect not only the actual product shapes they have trademarked, but also a ‘penumbra’ of more or less similar shapes that would not otherwise qualify for trademark protection.” Id. Another ramification the court highlighted was the potential for anticompetitive behavior based on the fact that allowing initial-interest-confusion to apply in the context of a product’s shape “would make it substantially easier for product-shape trademark-holders to survive a defendant’s summary-judgment motion than for plaintiffs alleging any other type of trademark infringement.” Id.

CONCLUSION: Based on these concerns, the 6th Circuit would not “go so far as to hold that there is never a circumstance in which it would be appropriate to apply the initial-interest-confusion doctrine to a product shape trademark.” Id. However, the court did not find that such an allowance would be appropriate in this case. Id.

Brumbalough v. Camelot Care Centers, Inc., 427 F.3d 996 (6th Cir. 2005)

QUESTION: “Whether a plaintiff is able to recover compensatory damages for emotional distress” that resulted from an employment termination in violation of the Family and Medical Leave Act (“FMLA”). Id. at 1007.

as they are the actual monetary losses of the employee such as salary and benefits and certain liquidated damages, the FMLA does not permit recovery for emotional distress.” Id.

CONCLUSION:The court held that “damages for emotional distress are not allowed under the FMLA.” Id. at 1008.

Andretti v. Borla Performance Indus., 426 F.3d 824 (6th Cir. 2005) QUESTION: Whether this court should apply the clear error or de novo standard to review offers of judgment under FED.R.CIV.P.Rule68 Id. at 837.

ANALYSIS: The court considered decisions in the 3rd, 5th, 7th, 9th, 10th and 11th Circuits and concluded that it “should apply general contract principles to interpret Rule 68 offers of judgment.” Id.

CONCLUSION: The court decided to “review de novo the legal interpretations of Rule 68 and review for clear error the factual findings concerning the circumstances under which Rule 68 offers were made.” Id.

United States v. McClain, 430 F.3d 299 (6th Cir. 2005)

QUESTION: How should the court reconcile the good faith exception for the exclusion of evidence, as established in Leon, with the “fruit of the poisonous tree” doctrine from Nardone? Id. at 307.

ANALYSIS: After holding that a police search was unconstitutional under the Fourth Amendment, the court had to determine if warrants derived from this unconstitutional search were also illegal. Id. The 9th and 11th Circuits had found that any good faith on behalf of investigators did not sanitize the results of a warrantless search. Id. The 2nd and 8th Circuits had held, in some circumstances, the opposite view. The 8th Circuit found the Leon exception applicable “when circumstances surrounding both the initial detention of [evidence] and the subsequent issuance of the warrant were ‘sufficiently close to the line of validity’ that the officers had ‘an objectively reasonable belief that they possessed a reasonable suspicion such as would support the valid detention of [the evidence] as well as an objectively reasonable belief that the warrant issued was valid.” Id. at 308 (quoting United States v. Fletcher, 91 F.3d 48, 51-52 (8th Cir. 1996)).

rule ‘when an officer acting with objective good faith has obtained a search warrant from a judge or magistrate and acted within its scope.’” Id. (quoting United States v. Leon, 468 U.S. 897, 920 (1984)).

Reeb v. Ohio Dep’t of Rehab. & Corr., 435 F.3d 639 (6th Cir. 2006) QUESTION: “Whether Title VII plaintiffs can bring a class action for injunctive or declaratory relief in the same action that seeks compensatory damages under FED. R. CIV. P. 23(b)(2).” Id. at 653 (Keith, J., dissenting).

ANALYSIS: The court noted that the Supreme Court’s holding in Gen. Tel. Co. of the Southwest v. Falcon, 457 U.S. 147, (1982), required plaintiffs requesting class certification in Title VII cases “to allege ‘significant proof’ that [a company] operated under a general policy of gender discrimination that resulted in gender discrimination manifesting itself in ‘the same general fashion’’ as to each of the kinds of discriminatory treatment upon which the pattern-or-practice class action rests.” Id. at 644 (quoting Reeb v. Ohio Dep’t of Rehab. & Corr., 81 F.App’x 550, 559 (6th Cir. 2003). The court discussed the 5th Circuit’s holding in Allison v. Citgo Petroleum Corp., which found that “claims for individual compensatory and punitive damages were very particularized inquiries . . . [thus,] the damages were not ‘incidental’ to the requested injunctive or declaratory relief.” Id. at 648 (quoting Allison v. Citgo Petroleum Corp., 151 F.3d 402, 414-15 (5th Cir.1998)). This contrasts with the 2nd and 9th Circuits, which found that a court could, in its discretion, certify a class action under Title VII despite claims for compensatory and punitive damages. Id. at 648-49.

CONCLUSION: The court followed Allison and held that “because of the individualized nature of damages calculations . . . the claims for individual compensatory damages of members of a Title VII class necessarily predominate over requested declaratory or injunctive relief, and individual compensatory damages [were] not recoverable by a Rule 23(b)(2) class.” Id. at 651.

Patel v. Gonzales, 432 F.3d 685 (6th Cir. 2005)

QUESTION: Whether the elimination of the 8 U.S.C. § 1182(i) waiver for parents of United States citizens has a retroactive effect. Id. at 690.

Supreme Court’s decision in INS v. St. Cyr, 533 U.S. 289 (2001). Id. “In St. Cyr, the Supreme Court held that IIRIRA’s elimination of [a] discretionary waiver . . . had a retroactive effect as applied to [specific] persons . . .” Id. at 690-91. The 6th Circuit, however, “limit[s] the application of St. Cyr to aliens who plead guilty to removable offenses prior to the enactment of IIRIRA regardless of when the removable offenses occurred.” Id. at 691. The 6th Circuit also recognized that 8 U.S.C. § 1182(i) was “not intended to apply retroactively.” Id. Ultimately, the court explained that the Landgraf factors “weigh against finding a retroactive effect” on the petitioners. Id. (citing Landgraf v. Usi Film Products, 511 U.S. 244, 269-70 (1994)).

CONCLUSION: “[T]he application of [8 U.S.C. § 1182(i)] . . . does not have a retroactive effect, the IJ properly applied the current version [8 U.S.C. § 1182(i)].” Id. at 689.

Bowles v. Russell, 432 F.3d 668 (6th Cir. 2005)

QUESTION: Where a petitioner does not receive timely notice of a district court’s final ruling, thus foreclosing the petitioner’s ability to file a timely appeal, may the petitioner seek relief and obtain a fourteen-day extension under FED. R. APP. P. 4(a)(6)? Id. at 669-70. If, in such a situation, the district court grants the “requested relief but mistakenly offer[s] an erroneous deadline” for filing of an appeal, should the erroneous deadline control, or is the fourteen-day period set out under Rule 4(a)(6) “not susceptible to extension through mistake, courtesy, or grace[?]” Id. at 669.

CONCLUSION: Where a district court erroneously extends the time to file a timely notice of appeal beyond fourteen days, it is the fourteen-day period set out under Rule 4(a)(6) that controls, and not the erroneous judicial order. Id. at 669-676.

United States v. Blood, 435 F.3d 612 (6th Cir. 2006)

QUESTION: What is “the meaning of the phrase ‘with intent to deceive another’ found in 18 U.S.C. § 513(a), which prohibits possession of counterfeit and forged securities with this deceptive intent.” Id. at 616. ANALYSIS:The defendants argued that the word “another” meant an entity other than the one which issued the security. Id. at 618-19. The court disagreed with the defendant’s reading of United States v. Thomas, 54 F.3d 73 (2d Cir. 1995). The Thomas court, in the view of the 6th Circuit, held that the word “another” did include the issuer of the security. Id. at 619. The 6th Circuit agreed with the conclusion that “another” included the issuer of the security by contrasting the use of the word “another” in the statute with the word “whoever.” Id. Thus, where the statute says that “whoever” engages in the prohibited act “with intent to deceive another,” the word “another” means one other than the individual committing the prohibited act. Id.

CONCLUSION: The word “another” includes “the intent to deceive the purported issuers of the fraudulent securities in question.” Id. at 622.

SEVENTH CIRCUIT

Illinois Dep’t of Revenue v. Hayslett/Judy Oil, Inc., 426 F.3d 899 (7th Cir. 2005)

QUESTION:“Whether the Illinois Motor Fuel Tax falls under [11 U.S.C.] § 507(a)(8)(C) or § 507(a)(8)(E).” Id. at 902.

ANALYSIS:The 7th Circuit noted that to determine “whether a tax falls within the purview of subsection C” the court must decide whether “the tax is imposed on the consumer or the retailer.” Id. at 903. “The Illinois Supreme Court has ruled that a prior version of the Tax was assessed on the consumer and not the distributor.” Id. at 904. The 7th Circuit then noted that “[t]he plain language of the statute itself leads to the same conclusion.” Id. The court found that the tax met a two-part test for inclusion under subsection C that it had previously established. Id.

was “an excise tax imposed on consumers that is collected by a third party” and that it accordingly should fall under § 507(a)(8)(C). Id. at 904-05.

United States v. McKissic, 428 F.3d 719 (7th Cir. 2005)

QUESTION:Whether constructive notice is enough warning when a court wishes to impose special conditions of education, employment and community service requirements for the supervised release of an inmate. Id. at 725.

ANALYSIS: The 7th Circuit determined that special conditions at issue were listed among the discretionary conditions that may be imposed by the court, under 18 U.S.C. § 3563(b). Id. Agreeing with the 5th, 9th, and 10th Circuits, the 7th Circuit held that constructive notice was adequate for conditions that are explicitly named in the statute. Id. at 725-26.

CONCLUSION: Since the special conditions of education, employment, and community service requirements are contemplated within the supervised release statute, actual notice is not required before the court may impose them. Id. at 726.

United States v. Arnaout, 431 F.3d 994 (7th Cir. 2005)

QUESTION: Whether a defendant “need not be convicted of a federal crime of terrorism as defined by § 2332b(g)(5)(B) for the district court to apply [a federal terrorism sentencing enhancement].” Id. 1000-01.

ANALYSIS: The court reviewed an 11th Circuit opinion, which expressly confronted this issue and held that the statutory language “unambiguously cast a broader net by applying the enhancement to any offense that ‘involved’ or was ‘intended to promote’ a terrorism crime.” Id. at 1002 (quoting United States v. Mandhai, 375 F.3d 1243, 1247 (11th Cir. 2004). The Sixth Circuit had held the same. Id. (citing United States v. Graham, 275 F.3d 490, 517 (6th Cir. 2001)).

EIGHTH CIRCUIT

United States v. Smith, 422 F.3d 715 (8th Cir. 2005)

QUESTION: Whether the “categorization of the reckless use of a firearm [regardless of it resulting in actual physical injury] as a crime of violence” as defined by United States Sentencing Guidelines, § 4B1.2, is proper. Id. at 721.

ANALYSIS: Citing decisions from the 6th and 7th Circuits, the 8th Circuit found that regardless of whether there was actual physical injury to another or intent to harm, “discharging a firearm is an inherently risky act.” Id. at 722 (citing United States v. Cole, 298 F.3d 659, 662 (7th Cir. 2002)). The court also noted that it has “previously concluded that certain firearm offenses that do not necessarily result in or require physical injury constitute crimes of violence . . . [just as] mere possession of a short-barreled shotgun is a crime of violence.” Id. Similarly, “[t]he common theme throughout these cases is that the recklessness of the act matters, not the intended target or actual victim.” Id. (citing Shepard v. United States, 125 S. Ct. 1254, 1257-58 (2005)).

CONCLUSION: Ultimately, the court held that the “district court properly held that the Iowa offense of the reckless use of a firearm is a crime of violence as defined by § 4B1.2.” Id. at 732. Essentially, “recklessly using a firearm around others always creates a serious risk of injury.” Id.

In re Marlar, 432 F.3d 813 (8th Cir. 2005)

QUESTION: Whether for the purposes of 28 U.S.C. § 303(a), “an alleged debtor in an involuntary bankruptcy case must timely assert his or her status as a farmer as an affirmative defense, lest it be waived.” Id. at 814.

requires that “a farmer against whom an involuntary petition is filed must timely controvert the petition by raising his or her status as a farmer in order to preclude the commencement of an involuntary case.” Id. at 815.

CONCLUSION: The court held “that an alleged debtor must timely assert his or her status in one of the exempted categories as an affirmative defense. If the alleged debtor fails to timely raise the issue, it is waived.” Id.

NINTH CIRCUIT

Reynolds v. Hartford Fin. Servs. Group, Inc., 435 F.3d 1081 (9th Cir. 2006)

QUESTION: “Does [the Fair Credit Reporting Act’s (“FCRA”)] adverse action notice requirement apply to the rates first charged in an initial policy of insurance or is it limited to an increase in a rate that the consumer has previously been charged?” Id. at 1090.

ANALYSIS: The 9th Circuit began with the text of the statute to determine the meaning of the term “adverse action.” Id. The court looked to 15 U.S.C. § 1681a(k)(1)(B)(i) to define adverse action as “a denial or cancellation of, an increase in any charge for, or a reduction or other adverse or unfavorable change in the terms of coverage or amount of, any insurance, existing or applied for, in connection with the underwriting of insurance.” Id. The court then applied the ordinary meaning of the terms “increase” and “charge” to refute the insurance company’s argument that an increased charge only refers to a previous charge a consumer has paid. Id. The court agreed, holding that affording the statute its plain meaning would further the purpose of FCRA to “promote the rights of consumers by giving them essential information about how their credit report is used.” Id. at 1091-92.

CONCLUSION: “We hold that whenever because of [a consumer’s] credit information a company charges a consumer a higher initial rate than it would otherwise have charged, it has increased the charge within the meaning of FCRA. Therefore, the fact that [the consumer’s] policy was an initial one, and his rate was the initial rate charged, is of no consequence.” Id. at 1092.

Clemens v. U.S. Dist. Court for Cent. Dist. of Cal., 428 F.3d 1175 (9th Cir. 2005)

threats he allegedly made on the life and health of three judges in the district.” Id. at 1179.

ANALYSIS: “[R]ecusal of an individual judge pursuant to § 455(a) may be required when the judge himself has been subject of a personal threat, unless the threat was motivated by a desire to recuse the judge.” Id. at 1179. “No reasonable observer could conclude that a threat against three judges based on their handling of the defendant’s pro se cases should be construed as a threat against all the judges of the district.” Id. at 1180. “[T]he threats that the defendant allegedly made were in no way related to complaints about the Central District as an entity.” Id. Instead, “the threats were aimed at particular judges perceived to have made unfavorable rulings in the defendant’s pro se cases.” Id.

CONCLUSION: The 9th Circuit ruled that “[t]he district court correctly held that mandatory disqualification of all judges on the Central District of California was not justified under § 455(a).” Id.

Bona v. Gonzales, 425 F.3d 663 (9th Cir. 2005)

QUESTION: “[W]hether a paroled alien, who is also deemed an arriving alien under 8 C.F.R. § 1.1(q), is properly precluded from applying for adjustment of status in removal proceedings.” Id. at 667.

ANALYSIS: An application of the plain language revealed that the petitioner was an “arriving alien.” Id. at 667-68. Then, the 9th Circuit, persuaded by the petitioner’s argument, adopted the reasoning of Succar v. Ashcroft, 394 F.3d 8 (1st Cir. 2005), which held that “8 C.F.R. § 245.1 (c)(8), the regulation that precludes arriving aliens from seeking adjustment of status in removal proceedings, is valid.” Id. at 665.

CONCLUSION: The petitioner is entitled to apply for adjustment in the removal proceedings. Id. at 664-65.

Ramadan v. Gonzales, 427 F.3d 1218 (9th Cir. 2005)

QUESTION:Whether a material change in circumstances affecting a foreign citizen’s asylum eligibility constitutes a “question of law” under 8 U.S.C. § 1252(a)(2)(D) (2005). Id. at 1219-20.

for the first time decided whether a finding of a material change in circumstances, or lack thereof, constitutes a question of law that is subject to judicial review. Id. at 1221-22. The court reviewed §1252(a)(2)(D)’s legislative history, concluding that a material change in circumstances is a question of fact, not law. Id. at 1222.

CONCLUSION: A decision concerning the existence of a material change in circumstances is not a question of law under § 1252(a)(2)(D) and is not subject to judicial review. Id.

Camacho v. Bridgeport Financial Inc., 430 F.3d 1078 (9th Cir. 2005) QUESTION:Whether a consumer’s dispute of the validity of a debt under the Fair Debt Collection Practices Act (FDCPA), 15 U.S.C.A. §§ 1692g and 1692e (2000 & 2005), must be in writing.

ANALYSIS: In analyzing a statute a court should examine the statute’s plain meaning, whether the plain meaning would lead to absurd or unreasonable results, and legislative intent. Id. at 1081. Further, “where Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.” Id. (citing Russello v. United States, 464 U.S. 16, 23 (1983)). “The plain language of the text of § 1692g(a)(3) does not state that the consumer must dispute the debt in writing.” Id. Allowing oral communication “does not lead to absurd results because an oral dispute triggers multiple statutory protections.” Id. at 1081-82. Oral communication is also consistent with legislative intent of giving alleged debtors an opportunity to respond to initial communications from a collections agency. Id. at 1082.

CONCLUSION: There is no writing requirement implicit in § 1629g(a)(3).

United States v. Esparza-Gonzalez, 422 F.3d 897 (9th Cir. 2005)

QUESTION: “Whether under the struck jury system waivers of peremptory strikes can form the basis of a Batson challenge.” Id. at 902.

potential juror [with an allegedly similar ethnic heritage as the defendant].” Id. at 899-900. The Supreme Court’s ruling in Batson, “held that a ‘state’s privilege to strike individual jurors through peremptory challenges[] is subject to the Equal Protection Clause.’” Id. at 901 (citing Batson v. Kennedy, 476 U.S. 79, 89 (1986)). Thus, the 9th Circuit held “that for purposes of determining whether . . . a Batson violation has been established, waivers of peremptory strikes in a struck jury system should be treated the same as exercises of peremptory strikes in an alternate system.” Id. at 899.

CONCLUSION: The court “reverse[d] the district court’s finding that the defendant failed to establish a prima facie case of [intentional] discrimination.” Id. at 907. Given the practical effects of the struck jury system, the failure to use a peremptory strike, standing alone without other evidence of discriminatory intent, can form the basis of a Batson challenge. Id.

Panaro v. City of North Las Vegas, 432 F.3d 949 (9th Cir. 2005)

QUESTION: “[W]hether a prisoner’s participation in an internal investigation of official conduct should be considered equivalent to exhausting a detention center’s available administrative grievance procedure.” Id. at 953.

ANALYSIS: First, the court pointed to the Prison Litigation Reform Act (“PLRA”), which “precludes an action by a prisoner ‘until such available administrative remedies as are available have been exhausted.” Id. Because the plaintiff did not “initiate, let alone exhaust, his administrative remedies through that procedure” the court found the PLRA to preclude plaintiff’s civil rights claim. Id. Second, the court noted that the 6th Circuit had come to the same conclusion when considering the issue at bar. Id.

CONCLUSION: Ultimately, the 9th Circuit adopted the rule that “participating in an internal affairs investigation does not by itself satisfy the exhaustion requirement of the PLRA.” Id.

Lindsey v. SLT Los Angeles, LLC, 432 F.3d 954 (9th Cir. 2005)

QUESTION: Whether the McDonnell Douglas test, as applied to claims of employment discrimination, must be modified when applied to “claims of racial discrimination in non-employment contracts arising under 42 U.S.C. § 1981.” Id. at 959.

section 1981 outside of an employment context.” Id. Therefore, the plaintiff must show that: “(1) it is a member of a protected class, (2) it attempted to contract for certain services, and (3) it was denied the right to contract for those services.” Id. As for the fourth element, which requires “that such services remained available to similarly-situated individuals who were not members of the plaintiff’s protected class,” the court declined to determine whether such must be modified, finding that the plaintiff “offered clear evidence that a similarly-situated group of a different protected class was offered the contractual services which were denied” to the plaintiff. Id.

CONCLUSION: Ultimately, the court applied all four elements of the McDonnell Douglas test without modification.

Kenna v. U.S. Dist. Court for the Cent. Dist. of Cal., 435 F.3d 1011 (9th Cir. 2006)

QUESTION: Whether the court should grant a writ of mandamus pursuant to the Crime Victim’s Rights Act (“CVRA”) because the lower court denied the victim an opportunity to speak at a second co-defendant’s sentencing merely because it believed that it had heard the victim’s concerns at the first hearing. Id. at 1013

ANALYSIS:A writ of mandamus can be granted when the decision merits review under the Bauman standard. Once the petitioner meets this threshold standard, the court must then apply the Bauman factors and determine if a writ should be granted. In this case, the petitioner raises an issue of first impression, and therefore meets the threshold requirement for review; thus, the court must apply the Bauman factors and determine if writ should be granted. Id. at 1017. The underlying rationale in the Bauman standard is to prevent interlocutory review. Id. However, in this case, the writ was made pursuant to the CVRA, which specifically allows for the interlocutory review that Bauman seeks to prevent. Id. Therefore, the Bauman factors are inapplicable in the petitioner’s case. Instead, under the CVRA, the 9th Circuit held that the court must issue the writ when there is an abuse of discretion or legal error. Id. The court noted that the 2nd Circuit has held similarly and that it is unaware of any decision to the contrary. Id.

Hamilton v. Wash. State Plumbing & Pipefitting Indus. Pension Plan, 433 F.3d 1091 (9th Cir. 2006)

QUESTION: Whether, “under ERISA, a QDRO can divest a surviving spouse of her statutorily-guaranteed right to a QPSA only if the QDRO expressly assigns surviving spouse rights to a former spouse.” Id.

ANALYSIS: The court first looked to the plain language of the statute to determine the scope of the strict spousal consent privileges of § 1055 of ERISA and the interplay between § 1059(d)(3)(F) which states that “‘[t]o the extent provided in any qualified domestic relations order,’ surviving spouse rights may be assigned to a ‘former spouse.’” Id. at 1098-99. The court determined that a QDRO must specifically assign the rights under it to a former spouse in order to divest the surviving spouse’s right to benefits under the pension plan. Id. The 9th Circuit also found support for its interpretation of the statute in other circuits, citing to 5th and 3rd Circuit precedent. Id. at 1100.

CONCLUSION: “[A] surviving spouse benefit must be explicitly assigned to a former spouse in a QDRO in order to overcome the surviving spouse’s right to a QPSA under ERISA.” Id. at 1103-04.

United States v. Pacheco-Navarette, 432 F.3d 967 (9th Cir. 2005) QUESTION: Whether a guilty plea colloquy is deficient when a court does not make a defendant aware of rights established by changes in the law or subsequent judicial decisions. Id. at 969.

ANALYSIS: In this 9th Circuit case, defendant challenged his plea of guilty which was made pursuant to a plea agreement. Id. at 968. The court noted that FED. R.CRIM. P. 11 obligates a court to describe to a defendant the consequences of the plea that have “‘a definite, immediate and largely automatic effect on the range of [his] punishment.’” Id. at 969 (quoting United States v. Littlejohn, 224 F.3d 960, 965 (9th Cir. 2000)). The court stated that “potential changes in the law” have no such effect on a defendant’s ultimate sentence. Id. Therefore, the court held that defendant could not claim that a guilty plea was rendered unknowing or involuntary when the lower court correctly stated his rights at the time the colloquy was given. Id. The court noted the issue of first impression and rested its holding on “well-established law stating that substantive changes in the law do not invalidate guilty pleas.” Id. at 969 (citing Brady v. United States, 397 U.S. 742, 756-58 (1970); United States v. Cardenas, 405 F.3d 1046, 1048 (9th Cir. 2005)).

rights established by subsequent judicial decisions or changes in the law.” Id. at 969.

United States v. Clark, 435 F.3d 1100 (9th Cir. 2006)

QUESTION: “[W]hether Congress exceeded its authority ‘to regulate Commerce with foreign Nations,’ U.S.CONST.Art. I, § 8, cl. 3, in enacting a statute that makes it a felony for any U.S. citizen who travels in ‘foreign commerce,’ i.e. to a foreign country, to then engage in an illegal commercial sex act with a minor.” Id. at 1101.

ANALYSIS: The court first noted that only a plain showing that Congress had exceeded its constitutional authority would suffice to invalidate the law. Id. at 1109 (citing United States v. Morrison, 529 U.S. 598, 607 (2000)). The court held that the showing was not made by the defendant in this case. Id. The court noted that Congress’s power to regulate commerce between nations is not as well defined as its domestic powers. Id. at 1112. Congress’s power for regulating commerce between nations, the court held, is sweeping and not subject to restrictions that may be put on the power domestically. Id. at 1113. Using the rational basis test, the court analyzed the statute and determined that because it targeted commercial sex, it was constitutional. Id. at 1115.

CONCLUSION: Congress was within its authority under the Foreign Commerce Clause to prohibit U.S. citizens from traveling in foreign commerce to engage in illegal commercial sex acts with minors. Id. at 1117.

United States v. Scott, 424 F.3d 888 (9th Cir. 2005)

QUESTION: “[W]hether police may conduct a search based on less than probable cause of an individual released while awaiting trial.” Id. at 888.